Criminal Justice System, is the means for society to enforce the standards of conduct necessary to protect individuals and the community (President’s Commission on Law Enforcement and Administration of Justice 1967). As a component of Criminal Law it is that body of laws which defines criminal conduct and treats its punishment. The Criminal Justice system was handed down the centuries and has its origins in the ancient Mosaic Code and Roman Law. It is the system which hopes to “reduce crime by brining more offenders to justice, and to raise public confidence that the system is fair and will deliver for the law-abiding citizen (Criminal Justice – Aims and Objectives). The Criminal Justice System involves three steps; First Law enforcement or police work, Adjudication or the court trial phase, and finally the corrections phase or the imprisonment and rehabilitation stage. This paper will compare the Criminal Justice System of the United States and Columbia using these three criteria.
Prior to any of the three stages a preliminary stage called codification must occur. At this stage the laws, in this case the criminal laws, are given by the lawmaking body. After all criminal laws are prospective, meaning they can not be applied to an event that occurred prior to the law coming into force. In the United States, with its federal government, the law giving bodies are the State and National Legislatures. Like any law a bill is first proposed and passed in Congress before the President signs it into law. State legislatures may also pass bills for their respective governors to sign into law applicable in that state. In some rare cases the Supreme Court can intervene and declare a law unconstitutional if it does not adhere to the constitution. However such events are rare. Colombia also follows a representative form of democracy with its attendant separation of powers follows a largely similar method of passing laws. A bicameral congress with a lower house called a chamber of representatives and an upper house called a senate will also pass bills which the president will sign into law. Likewise, laws can be overturned by the Supreme Court of Colombia if they are inconsistent with the Constitution of 1991 ( The administration of justice in Colombia, 20th Century La administración de Justicia en Colombia, siglo XX Desde la Constitución de 1886 a la Carta Política de 1991). One difference at this stage is the fact that United States Criminal Law originated from the English Common Law system while Colombian Law was based on Spanish Criminal Law. This is a consequence of the fact that both countries were formerly colonies of England and Spain respectively.
Law Enforcement Stage
The Law Enforcement stage is the first step in the criminal justice system. All people are in contact with this step. With a valid, existing, system of criminal laws in place it is hoped that this is the only stage that citizens will come into contact with. This stage generally involves people living their everyday lives avoiding running afoul of the criminal laws. If an when they do violate the laws police officers from law enforcement agencies are empowered to use force and other forms of lawful coercion to apprehend the violator and restore public order. The legal term police power, which actually means the power of government to interfere with private individuals’ for public safety, public morals and public health, is often confused with the power of the police to make such arrest. In fact, the police exist more as a deterrent to prevent crimes from occurring than actually arresting violators.
The belief that police exist mainly to enforce criminal law was first popularized in the 1930s with the formation of the Federal Bureau of Investigation as the pre-eminent “law enforcement agency” in the United States (Walker 1977). However police work in the United States involves a wider variety of contexts which are predominantly concerned with the preservation of order (Neocleous 2004). In the United States there are generally two branches of Law Enforcement, the Federal Bureau of Investigation or FBI and the State Police departments with its subunits, like the Los Angeles Police Department in California. Broadly speaking, the FBI has jurisdiction over crimes anywhere in the U.S. while State police only has jurisdiction for the area it is responsible for. There are also several units with specialized jurisdictions like Postal Police, Park Rangers and Amtrak Police. It is also worth noting that the Police are entirely separate from the Military. The Police, including the FBI director, answer to the Secretary of the Interior and after the 9/11 bombings to the Secretary of Homeland Security while the Military is under the Secretary of Defense. In Colombia the role of Law enforcement falls to the Policia Nacional de Colombia or The Colombian National Police it is roughly the equivalent of the FBI and its regional commands are similar in function to State police departments. Unlike its U.S. counterparts the Colombian National Police is directly under the Ministry of Defense. In theory, as well as actual practice during emergencies, the Colombian Police units can be used as soldiers in an armed conflict. However aside from its ultimate mandate to protect the Colombian nation, its functions are mostly civilian in nature. Its constitutional mandate is to maintain and guarantee the necessary conditions for public freedoms and rights and to ensure the peaceful cohabitation among its people The administration of justice in Colombia, 20th Century La administración de Justicia en Colombia, siglo XX Desde la Constitución de 1886 a la Carta Política de 1991). Historically the Colombian Police has shifted from Military Command to Civilian command depending on the swings of the Colombian Government.
In the United States, Police are often accused of employing too much force, even deadly force, in making arrests. This is often an unfair allegation considering that Police rules of engagement require them to use only as much force as is necessary to prevent the perpetrator from escaping arrest and to protect their own lives. For example, Police are instructed to avoid using their firearms if possible and to fire a warning shot first before actually shooting the perpetrator even when the resort to shooting an escaping perpetrator they are instructed, as much as possible, to aim at the legs. Images of Police murdering suspects in cold blood are unfair because more often than not Police will only kill a suspect if he was trying to kill them first. Despite such allegations, U.S. police are some of the most trusted and reliable in the world. In Colombia, as mentioned earlier, the Police are often used as Military troops hence are historically more violent than their U.S. counterparts. It does their reputation no good that in the past CNP officers have been accused of accepting bribes from drug cartels and are co-opted as private armies of the same. Recent reforms have cleaned up the image of the CNP, while allegations of corruption and human rights violations remain the police in recent years have shown marked improvement. In general, Colombian police is competent and capable in handling its work with the possible exception of the dealing with the Drug Cartel and the massive resources it has at its disposal.
The adjudication stage begins when the accused is in the custody of the law. This usually occurs when he has been arrested by the Police or if he has surrendered to the authorities. In both countries the adjudication stage involves bringing the accused before a judge to decide his guilt or innocence of the crime he is accused of. Both systems feature an adversarial court where a prosecutor tries to prove to the court that the accused is guilty while the accused, represented by counsel, tries to prove his innocence. Both nations follow the internationally accepted level of proof of Guilt beyond reasonable doubt in convicting or acquitting an accused.
The rules during the adjudication stage are known as Criminal Procedure. The rules of Criminal Procedure have to be strictly followed because if they are not the entire case can be thrown out no matter how guilty the accused really is. For example in both states failure to inform the accused of his Miranda rights, the proverbial “you have the right to remain silent” spiel”, is grounds to dismiss the case. Likewise if a warrant is not secured for an arrest or seizure of property only in the most meritorious situations will the arrest or seizure remain valid.
Another similarity in the adjudication stage is that both countries require a trial by jury in criminal cases. A United States jury is made up, in theory, of the peers of the accused. In practice they are ordinary citizens called to the court, and whittled down by the respective lawyers, whose only task is to be present at the trial and vote to decide on the innocence or guilt of the accused. In Colombia the Jury is made up of five magistrates. In both cases the main goal is to prevent the burden of conviction or acquittal from being shouldered by just one person. If the person is acquitted of charges he will go free but if he was proven guilty in the lower court then he can appeal the decision to a higher court. In the United States and in Colombia appeals are forwarded to the Appeals Court and then in due course to the Supreme Court, only in the U.S. there is also the state Appeals Court and state Supreme Court.
The United States and Colombia adhere to the Positivist theory of Criminal Law. This theory provides that crime is essentially a social and natural phenomenon, and as such, it can not be treated and checked by the application of abstract principles of law and jurisprudence nor by the imposition of a punishment, fixed and determined a priori but rather through the enforcement of individual measures in each particular case after a thorough, personal and individual investigation conducted by a competent body of psychiatrists and social scientists. Man is occasionally subdued by strange and morbid phenomenon which constrains him to do wrong despite or contrary to his own volition. In other words, the criminal is an object of pity to be understood and rehabilitated instead of punished. Another feature of this system is that both states practice a form of indeterminate sentencing which means that similar crimes may result in different penalties being imposed if they have different contexts. For example, homicide in cold blood carries a longer jail term than homicide when the killer was provoked. As a result the third and final stage of Criminal justice should rightly be understood as the Rehabilitation Stage. Restated this is the stage where the convicted felon is committed to a rehabilitation facility for a period of time and upon completion of this period he is released back to society, hopefully, reformed and with no desire to run afoul the law again.
Some States in the United States still practice Death Penalty while Colombia has abolished it entirely. In both states, an adult convict is committed to an incarceration facility known as a rehabilitation center for a period of months or years or even for life. The difference at this point is economic in character. As a first world nation the United States can provide a much better standard of care for its ‘unwilling’ guests. U.S. prisons are world-class facilities with exercise yards, television and even internet access for the prisoners. Colombia, a third world country where the unfortunate chief export remains cocaine, prisons are of a decidedly lower quality. They are overcrowded forlorn buildings where prisoners are as likely to die of disease as gang warfare or other causes. The U.S. also feature separate rehabilitation facilities and programs for minor offenders. Juvenile rehabilitation facilities are practically the same except for the fact that its ‘guests’ have shorter stays and are younger than those in adult prison. Simply put, other than the fact the U.S. correctional facilities are better funded they are mostly similar to their Colombian counterparts.
In conclusion, The Criminal Justice System involves three steps; First Law enforcement or police work, Adjudication or the court trial phase, and finally the corrections phase or the imprisonment and rehabilitation stage. This paper has compared the Criminal Justice System of the United States and Columbia using these three criteria. In closing, both Criminal Justice Systems work well for their respective contexts. Other than the sources of law and practical differences, like the existence of two police forces in the U.S. , FBI and State Police, as opposed to just one unified police force in Colombia, both systems are largely similar. Economic factors also make the U.S. system better.
- President’s Commission on Law Enforcement and Administration of Justice (1967). The Challenge of Crime in a Free Society. U.S. Government Printing Office.
- Criminal Justice – Aims and Objectives. Scottish Executive Consultations.
- The administration of justice in Colombia, 20th Century La administración de Justicia en Colombia, siglo XX Desde la Constitución de 1886 a la Carta Política de 1991.
- Walker, Samuel (1977). A Critical History of Police Reform: The Emergence of Professionalism.
- Neocleous, Mark (2004). Fabricating Social Order: A Critical History of Police Power.